The United India Insurance Co. Ltd vs Shilpaben Hitesh Kanchva
2023 Latest Caselaw 4189 Guj

     C/SCA/9269/2023                       ORDER DATED: 08/06/2023




     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/SPECIAL CIVIL APPLICATION NO. 9269 of 2023

======================================
           THE UNITED INDIA INSURANCE CO. LTD.
                           Versus
               SHILPABEN HITESH KANCHVA
======================================
Appearance:
MR RATHIN P RAVAL(5013) for the Petitioner(s) No. 1
for the Respondent(s) No. 1,2,3,4,5,6,7,8
======================================

 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                       Date : 08/06/2023

                         ORAL ORDER

1. Learned advocate Mr. Rathin P. Raval appearing for the

petitioner submits that the challenge has been given to an

order dated 20.03.2023 passed below Exh. 17 in Motor

Accident Claim Petition No. 113 of 2021 by the learned Motor

Accident Claims Tribunal, Jamnagar where the prayer was

made by the Insurance Company for joining the owner of other

offending vehicle, which was involved in the accident as a

necessary and proper party for determination of the claim

petition. It was stated that the proposed party is a tort-feasor

and is required to be brought on record.

       C/SCA/9269/2023                                    ORDER DATED: 08/06/2023




2.     Reliance         was   placed   in    the      case   of     New          India

Assurance Company Limited v. Ayar Sakhiben Jivaben,

2018 (0) AIJEL-HC 24063 and in the case of Gujarat State

Road Transport Corporation v. Gurunath Shahu,

rendered in First Appeal No. 427 of 1988.

2.1 The learned advocate for the petitioner, in view of

decision in Khenyei v. New India Assurance Company

Ltd. & Ors., (2015) 9 SCC 273, submits that the learned

Tribunal would be required to determine the extent of

negligence between the joint tort-feasors so that the inter se

liability can be determined and either would be in a better

position to recover the sum from the other in accordance with

the order passed by the learned Tribunal in the concerned

matter. He further submits that in the decision in Ayar

Sakhiben Jivaben (supra), it is held that whenever a plea is

raised for joining another tort-feasor, it would be in the interest

of justice and for just decision, the Tribunal should allow the

application as a matter of rule and practice and should order

the joining of other tort-feasor as a party to the matter.

3. It appears that the learned Tribunal, while rejecting the

C/SCA/9269/2023 ORDER DATED: 08/06/2023

application, has noted that at the time of accident, deceased

Hitesh Punjaji was travelling in Truck No. GJ-27-T-8047 as a

Cleaner and accident was occurred with vehicle Truck No. HR-

56-A-9402. The Tribunal was of the view that, "the petitioner

is the master of his case and he can join the parties as per his

wish unless and until the party is necessary party. In the

present matter, owner and driver of vehicle Truck No. GJ-27-T-

8047 is not necessary party and only a proper party and

present claim petition can be decided in absence of that

party". Thus, the learned Tribunal has concluded that the

respondents cannot force the petitioner to join the other

parties only for the purpose to reduce its liability on the ground

of negligence. There is no denial to that observation of the

learned Tribunal but as has been laid down in the case of Ayar

Sakhiben Jivaben (supra) while relying upon the decision in

the case of Gujarat State Road Transport Corporation

(supra) and even the in the case of Lalabhai Mavjibhai

Parmar v. Raval Natvarbhai Melabhai, referring to the

Division Bench judgment of this Court, whenever a plea for

joining another tort-feasor is raised and prayed for, it would be

better for the Tribunal to insist that all the joint tort-feasor be

brought on record and when an application for joining party is

C/SCA/9269/2023 ORDER DATED: 08/06/2023

submitted by a tort-feasor on record, the said application is to

be allowed almost as a matter of rule and practice and another

joint tort-feasor will have to be joined as party opponent.

4. In the case of Lalabhai Mavjibhai Parmar v. Raval

Natvarbhai Melabhai (supra), this Court, vide order dated

09.03.2016, considering the decision rendered by the Hon'ble

Supreme Court in the case of Khenyei (supra), it is observed

in Paragraph-4 as under:

"4. Therefore, prima facie, there is no substance in the petition, in as much as, the law is well settled that though compensation can be awarded in absence of all tort feasors more particularly, when there is no composite negligence between two tort feasors and when there is no evidence regarding negligence of applicant, when one of the tort feasor has brought to the notice of the Court that it would be appropriate to join other tort feasor there is nothing in the law, which restricts the Court to refuse to join such tort feasor. It is also claimed that though there is inter se negligence of both the tort fessers, it would be appropriate to have their presence before the Court so as to fix their liability to avoid multiplicity of proceedings. Therefore, there is difference between the issue related to negligence either composite or contributory so far as claimants are concerned as against presence of necessary party in any such claim petition."

5. It is true that in case of composite negligence the

claimant has right to choose the party - respondent, as the

C/SCA/9269/2023 ORDER DATED: 08/06/2023

composite negligence refers to negligence on the part of two

or more persons and claimant would thus be in his own right to

exercise the option of recovering the monies from any of the

tort-feasors. In case of composite negligence as has been held

in case of Khenyei (supra), the claimant is entitled to sue one

or both joint tort-feasors jointly and severely in case of

composite negligence, apportionment of compensation

between two tort-feasors vis-a-vis the claimant is not

permissible as the claimant can recover at his option whole

damages from any of them. However, where it has been

brought on record and to the notice of the Court by one of the

tort-feasors to implead the other offending tort-feasor as a

party then it would become necessary for the Tribunal as rule

and practice to join the other tort-feasor since the negligence

would thereafter, have to be determined and the inter se

liability get fixed so as to enable the other tort-feasor to

recover the sum of money from the other after making whole

of the payment to the claimant to the extent and to satisfy the

liability of the others, taking this proposition of law, it would be

just for the tribunal to allow the application of the other joint

tort-feasors making a prayer to join the other offending vehicle

so that inter se liability could be decided by the Court and the

C/SCA/9269/2023 ORDER DATED: 08/06/2023

result, the tort-feasor would have an option to recover the

money, if at all, is deposited in context of the amount paid to

the claimant, who exercises the option to recover this

compensation amount from any of the tort-feasors.

6. In view of the reason given herein above, the order dated

20.03.2023 passed below Exh. 17 in Motor Accident Claim

Petition No. 113 of 2021 by the learned Motor Accident Claims

Tribunal, Jamnagar is hereby quashed and set aside and the

prayer made for joining party in accordance with Exh. 17 is

allowed and accordingly the party as prayed for, be made

party respondent in the claim petition.

6.1 With aforesaid, the petition is disposed of.

[ Gita Gopi, J. ] hiren /38